Saturday, December 12, 2009

Another success and more refunds but ...

the council is going to end up in a lot more trouble should someone who has paid a PCN take legal action or make a criminal complaint of misconduct or fraud.

The issue at the core of this is that the Traffic Order referred to the driver being responsible for the fine, not the Registered Keeper as civil parking enforcement requires. Therefore, the statement that there should not be refunds due to the fact that the person paying 'admitted liability' is offensive and wrong. If their legal document stated that the driver was responsible and they then sent a Notice to Owner claiming that the owner or registered keeper was liable, then that is a false representation. The TRO may have been 'in force' having been made but it misrepresented the position relating to the primary legislation.

Therefore, ALL monies must be refunded otherwise the council has been unjustly enriched and risks investigation by the District Auditor and, should anyone make a criminal complaint, by the Police.

The Fraud Act 2006 is explicit 2 Fraud by false representation (1) A person is in breach of this section if he—(a) dishonestly makes a false representation, and(b) intends, by making the representation—(i) to make a gain for himself or another, or(ii) to cause loss to another or to expose another to a risk of loss.

A Hertfordshire council lost £24,000 in revenue from parking fines because enforcement orders were out of date.St Albans Council's parking rules said a vehicle driver was liable for parking fines but it should have been the vehicle's keeper.Colm O'Callaghan, the council's chief finance officer, said the blunder made it "impossible" to enforce the fines.

Terminology in the order had been wrong since 2005, when a new regime for off-street parking was introduced.In a report to the council about the mistake, Mr O'Callaghan said: "Legal advice was that this did not invalidate the traffic order."But it did make it impossible for the council to pursue further enforcement action and brought financial cost."

Workload reviewInitially the council had said it thought the cost of the error could be as high as £32,000.In October a tribunal investigating a claim against a £50 ticket ruled that it was invalid as legal wording had not been updated.The council has since decided to write off 1,621 penalty charge notices.

"The council is now paying the price both financially and in terms of its reputation for being accident prone"Julian Daly, Conservative group, St Albans Council

The tickets were issued at off-street car parks between 31 March 2008 and 5 November 2009.

People who have already paid the fines are considered to have admitted liability, although since the error was revealed some have submitted requests for refunds.

Mr O'Callaghan's report identified a protracted line of responsibility from the parking contract manager to the city and district engineer, who it said had a heavy workload.In its response to the mistake, the council is to consider the creation of a clear procedure and check-list for work to be signed off and the implementation of a workload review.

Leaders blamedThe management responsible have been invited to put forward a plan to implement these recommendations.Julian Daly, leader of the Conservative opposition group on the council, said management and the political leadership of the Liberal Democrat ruling party were responsible for the mistake.

He said: "Traffic orders were not subject to review by the council's legal team and there was some absence of prioritisation in the relevant team which contributed to the error."

He backed the call for a workload review but said the relevant portfolio holders should ensure the engineering and technical services section were adequately resourced or that its workload was reduced accordingly.

"The council is now paying the price both financially and in terms of its reputation for being accident prone," Mr Daly said.